Coleman v. People ex rel. Donelson
| Decision Date | 09 December 1895 |
| Citation | 7 Colo.App. 243,42 P. 1041 |
| Parties | COLEMAN, County Clerk, et al. v. PEOPLE ex rel. DONELSON. |
| Court | Colorado Court of Appeals |
Error to district court, Routt county.
Action of mandamus, on the relation of Ephus Donelson, against Walter Coleman, clerk of Routt county, impleaded with others to compel them to transfer the county offices from Hahn's Peak to Hayden as the proper county seat. From a judgment for plaintiff and relator, defendants bring error. Reversed.
Rogers & Shafroth, for plaintiffs in error.
Geo. L Hodges, for defendant in error.
For nearly 17 years Hahn's Peak has been the county seat of Routt county. In March, 1894, Ephus Donelson, an alleged taxpayer of the county, commenced these mandamus proceedings to compel the removal of the county offices and records to Hayden, which he alleged was, in law if not in fact, the county seat of Routt county. In determining this controversy we shall depart a little from the almost universal practice which prevails in this and other appellate tribunals. The situation warrants the deviation. On the conclusion of the trial, the court made certain findings of fact, and expressed his conclusions of law. We shall not accept these findings of fact as conclusive on this court, nor as disposing of one of the propositions which we expect to discuss. The justification for this departure is found in the method of trial. The case comes here in precisely the same shape that it would had the cause been tried or heard on depositions under which circumstance it is the well-settled rule in this jurisdiction that the appellate court has the right to weigh and sift the evidence, and for itself determine what it shows, and the conclusions which may be legitimately drawn from it. The case was tried on a stipulation which embraced most of the facts, and on the testimony of four witnesses, who were called for the respondent, and whose testimony is uncontradicted. This situation is ample warrant for our position.
Routt county was created out of the county of Grand, by an act of the legislature approved the 29th of January, 1877. By the terms of the act the governor was authorized to appoint the county commissioners and the other requisite county officers, to organize the county government, and to set it in operation. According to the act, the court and county officers should be located at such place in the county as should be designated by the commissioners, until the next general election after the passage of the act, when the electors of the county were authorized to permanently locate the county seat. The facts which we shall now state would, under certain conditions, furnish a conclusive reason for the reversal of this judgment. The decision will not be placed on this precise ground, yet the matter received so much attention at the hands of the trial court, and the record contains so much evidence respecting the matter that we feel quite at liberty to express our convictions concerning it. When Routt county was established, that part of the state was a very much unsettled country. To-day, it is probably the most remote from the systems of transportation, and Hahn's Peak is the most inaccessible county seat in the state. When the matters happened of which we shall speak, that section contained nothing but a few thinly-peopled mining camps in the vicinity of the landmark of that county, Hahn's Peak mountain. This mountain is visible for miles, and in the early days was always referred to as the place whence the miner was journeying, if he was going to Routt county, as Pike's Peak was known all over this country, and spoken of as the objective point of the west-bound traveler. At the base of this mountain there had been some discoveries of placer mines, which were being worked by various mining companies and prospectors. In a space of probably less than 3 miles at the foot of the mountain, there were several places where mining operations were being prosecuted, and as the miners gathered together in little sections they gave to the particular locality where they were working divers names of the sort which miners frequently adopt. They were spoken of as Hahn's Peak, Poverty Flat, Bugtown, and International Camp; the last two names being interchangeably used to designate one and the same place. There was a post office at this point which by the department was called Hahn's Peak. One of the witnesses testified he was living at Bugtown or International Camp at the time of the election in 1877, and remained postmaster for some little time thereafter. At this time the post office was at Bugtown or International Camp, although it was called Hahn's Peak post office. The post office was subsequently moved, though at what exact time is not stated, to the spot where the county records and courthouse now are, which is now known as, and probably was then called, Hahn's Peak. These places are between 1 1/2 and 3 miles apart, and right around the base of the mountain; Poverty Flat being a somewhat broad plain or tongue of land which divides them. These facts must be borne in mind, and their applicability will be appreciated, when we come to discuss the vote which was probably cast in 1877 for a county seat. The county commissioners, under the legislative authority, placed the county offices at Hayden, which is the point to which the relator now seeks to remove them. They were kept in this locality until the spring of 1879. As has already been stated, the act of 1877 authorized the voters to permanently locate the county seat of the county at the next general election following the organization of the county. The record is not entirely satisfactory with reference to what happened in 1877. The respondents did not rely on the election of 1877 for their defense, but justified under what was done in the general election in 1878, following which the county seat was removed to its present situs. The evidence respecting the election of 1877 is of course exceedingly meager. It was had nearly 20 years ago, and in a thinly-settled locality, where few of the forms and uses which prevail at the present time were observed. The records seem to have been lost, and all that could be produced were the poll books used at the election. These poll books showed that, at the election of 1877, 96 votes were cast on the question of locating the county seat. Windsor got 35 votes; Steamboat Springs, 2; Hahn's Peak, 12; International Camp, 47. Notwithstanding this fact, the commissioners appear to have concluded there was no choice by the voters, for the question was again submitted to a vote at the ensuing general election.
It now becomes necessary to state the general legislation respecting the location of county seats. The organic law, in section 2, art. 14, of the constitution, deprives the general assembly of the power to remove the county seat of any county, but permits the question to be regulated by the general law, with these limitations: There can be no removal of the county seat unless a majority of the electors vote for it, and no proposition on the subject shall be submitted oftener than once in four years. The Revised Statutes of 1868 contained certain provisions. These statutes are referred to, in place of the compilation of 1877, because part of the act found in the Revision was omitted in the compilation of 1877, and is only found under the head of "Errata," at the beginning of that volume. Those acts are:
Section 40: "It is further provided that the people may locate permanently the county seat in any part of the county, by a vote of the majority of the legal voters in each county, according to law."
Section 41: Section 42: "Whenever the legal voters of any county are desirous of changing their county seat at any time, upon petition being presented to the county commissioners, signed by a majority of them, to be ascertained by said commissioners, it shall be the duty of such commissioners to require the sheriff, in giving the notice for the next county election, to notify said voters to designate upon their ballots, at said election, the place of their choice; and if, upon canvassing the votes polled or given, it shall appear that any one place has a majority of all the votes polled, such place shall be the county seat, and notice of such change shall be given, as provided in section forty-one."
Section 43: "If no place has a majority of all the votes polled in either of such elections for the location or change of the county seat, it shall be the duty of the county commissioners, within one month after any such election, to order a special election and give ten days' notice thereof, in each township in the county, at which election votes shall be taken by ballot, the same as at the general election, and if no place then have a majority of all the votes, the county seat shall not be changed until the next general election, when a vote may again be taken, as provided in section forty-one."
Under this legislation, the question of the permanent location of the county seat was undoubtedly remitted to the voters of the county. Of course, this suggests the question whether what...
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